The Federal Solution

As long as you’re not too picky about some details (it was South Dakota, not North Dakota, where the abortion restriction initiative failed), Damon Linker is making a certain amount of sense here (via Chris Dierkes):

How could Obama — how could liberals, how could supporters of abortion rights — both win and end the culture war, once and for all? By supporting the reversal or significant narrowing of Roe, allowing abortion policy to once again be set primarily by the states — a development that would decisively divide and demoralize the conservative side of the culture war by robbing it of the identity politics that holds it together as a national movement.

If liberals were persuaded by this proposal, I would be very surprised, because it is an abandonment of the status quo where pro-choicers hold all the cards. Ending the culture war “once and for all” will not follow the reversal of Roe, and liberals would resist that reversal as strongly as they could. First of all, pro-choice interest groups have at least as much invested in keeping Roe/Casey as the law of the land, and there is a parallel identity politics that has emerged on the left that insists that it is a matter of a woman’s fundamental rights that must be upheld at the federal level and enforced nationwide. I assume most pro-choicers believe this, or at least none is willing to deny it openly, so it is difficult to see why they would accept an argument that returns the matter to the states. After all, I can imagine someone arguing that liberals would not submit other constitutional rights–which is what they believe Roe upholds–to state electorates to limit or eliminate as they saw fit.

Allowing the issue to be returned to the states would satisfy a large part of the electorate, including many conservatives interested in reviviving federalism, but it would not end the culture war over abortion. It would decentralize the culture war and make it part of democratic debate in each state, which means that the issue would retreat from debates in presidential elections and in Congress but become even more intense as an issue in state legislative and gubernatorial elections. It might be for the next few decades that most states would maintain legalized abortion with few restrictions, but the pressure to change that in many states would be constant and intense. The more politicized and involved in the democratic process a contentious issue becomes, the more it becomes the basis for identity politics and polarization. There is certain “damned if you do, damned if you don’t” quality to this: keeping the issue as a matter for the judiciary and keeping Roe in place generates tremendous opposition and perpetuates the culture war, but overturning Roe would probably intensify the culture war.

At present, pro-lifers might reasonably question what purpose is served by basing their voting on an issue that is not even directly under the control of elected officials, and over time pro-lifers’ support for the GOP is bound to wane as they see little action in exchange for their steadfast support. In a post-Roe future, the GOP might have to make itself much more accountable to pro-life voters by pushing for restrictions on abortion, and the alliance between pro-lifers and the GOP might be solidified. One exception to this might be extremely zealous pro-lifers, who would insist on re-nationalizing the issue on their terms, but their influence would likely fade over time. To the extent that many pro-life activists fall into this category, there would be some internal division on the right, but it would hardly have the crippling or demoralizing effect Linker wants to see.

Contrary to the cynical take that the national GOP needs to keep Roe intact to maintain its coalition, which was a view for which I had some sympathy in the past, I am beginning to think that the last thing the GOP wants is to have to answer to pro-lifers on a regular basis and be judged on the basis of meaningful legislative action. Keeping Roe in place allows the GOP to pay lip service to the issue and win a certain number of votes, but this also prevents pro-lifers from putting even more pressure on state Republican parties, which is what they would do if the ruling were overturned. The shape of post-Roe social and religious conservatism would change, and its pro-life activists would have to adapt to an entirely different landscape, but if Linker thinks that the reversal of Roe in the context of continued legalized abortion in most states would cause “the religious right” to diminish I think he has misjudged things. Certainly, I can see many advantages in the reversal of Roe, but I find it hard to believe that Linker would welcome it. If he does, this could be the basis for a limited compromise, in which the two sides agree to submit the debate to the electorates of the several states.

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3 Responses to The Federal Solution

I’ve used Linker’s point about how overturning Roe would take away a national issue for the Republicans, but it’s not much more than a debating point.

What is the breakdown of pro-choice Republicans and pro-life Democrats in the state legislatures? It is my guess they are more numerous than at the national level. Thus overturning Roe could provoke minor civil wars within both parties.

There could be internal divisions followed by realignments by party, which is not necessarily going to work to the advantage of Democrats in some Midwestern and Southern states. The funny thing is that federalism on this question would allow national Republicans much more flexibility in recruiting moderate and liberal members to run in the Northeast and on the Pacific coast. Their voters wouldn’t have to worry about them voting on bills or judges related to this issue, and so they could ignore the views of the candidates’ party leadership more easily. The end result would probably be that the national parties would become more diverse, while individual state parties would become more uniform and would match up more closely with their constituents.

I fail to see how overturning Roe would remove abortion as an issue in national elections. The Republican candidate would run on a platform of a national ban, and the Democratic candidate would run on a platform of national legalization.